2004 Supreme(Bom) 923

IN THE HIGH COURT OF BOMBAY
Karnik D.G., J.
Godrej Boyce Mfg. Co. Ltd. .... Petitioner.
Versus
Sridhar Jagannath Nerurkar .... Respondent.
Civil Revision Application No. 58 of 2004, decided on 6-7-2004.
Advocates appeared :
Y.S. Jahagirdar with Tejas Deshmukh, for applicant.
A.K. Abhyankar i/b. Mehta Co., for respondent.

Headnote:Maharashtra Rent Control Act, 1999 - Sections 3(1)(b) and 58 - Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947), Section 13 - Suit for eviction. - A second suit for eviction of a tenant, who is not protected under Maharashtra Rent Act, 1947, is maintainable. (2001) 8 SCC 397, CRA No. 1191/01 dated 18th January, 2002 by Chandrachand J., 2003 (3) All MR 967 - Relied on - For these reasons, that a suit filed after 31st March, 2000 under the general law - Transfer of Property Act - for eviction of a tenant who is not protected under the provisions of the Maharashtra Rent Act is maintainable and is not hit by the provisions of Section 58 merely be cause a previous suit for eviction against such a tenant filed under the provisions of any of the repealed Acts like the Bombay Rent Act was pending on 31st March, 2000. The trial Court therefore rightly held that the second suit was maintainable. The Civil Revision must therefore fail.

       Relying upon the decision of the Apex Court in Ambalal Sarabhai Enterprises Ltd. v. Amritlal and Co., reported in (2001) 8 SCC 397, counsel for the petitioner submits that the second suit in any event should have been stayed. Though no application was made for stay in the trial Court, the counsel submits that instead of driving the petitioner to file a second application in the trial Court for stay of the suit this Court itself should consider the request for stay of the second suit. In order to avoid multiplicity of the proceedings and with the consent of the counsel for the respondent the request is granted. I would accordingly consider whether the second suit filed under the provisions of the Transfer of Property Act should be stayed. The question whether a second suit filed under the Transfer of Property Act during the pendency of a suit for eviction previously filed under the provisions of the Bombay Rent Act needs to be stayed is not res integra, and is already covered by an unreported decision of this Court in Dilip Prabhakar Dingorkar v. Hindustan Petroleum Corporation Ltd., CRA No. 1191 of 2001 decided on 18th January, 2002 Coram : Dr. D.Y. Chandrachud, J. In that case, the owner of the property had filed a suit against H.P.C. Ltd. for eviction under Section 13(1) (g) of the Bombay Rent Act. The suit as well as the appeal were dismissed and the writ petition by the owner was pending in this Court on 31st March, 2000 when the Bombay Rent Act was repealed by the Maharashtra Rent Act. The provisions of the Maharashtra Rent Act are not applicable to H.P.C. Ltd. in view of the provisions of Section 3(1)(b) of the Act. During the pendency of the Writ Petition, the owner filed a suit against H.P.C. Ltd. for possession under the general law namely the Transfer of Property Act, 1882 after terminating the tenancy. In that suit an application for stay of the suit was made by H.P.C. Ltd. under Section 10 of the Code of Civil Procedure. The application was allowed by the trial Court and the suit was stayed. Allowing the Revision Application this Court held that the cause of action for a suit for possession under the provisions of the Bombay Rent Act was different than the cause of action in a suit for possession under the Transfer Property Act. In a suit for of the said judgment the Supreme Court has observed that it would not be right for the landlord to continue two parallel proceedings one under the general law and other before the Rent Controller. The Supreme Court further gave a direction to the landlord to continue only one of two proceedings within six weeks. Though no reasons appear to have been given in the judgment for directing the landlord to prosecute one of the two proceedings it appears that the direction was given in exercise of its special jurisdiction under Article 136 of the Constitution of India, in the facts and circumstances of that case. No law appears to have been declared by the Supreme Court that a second suit filed under the general law must be stayed or even for that matter that in every case the landlord must choose to proceed with only one of the two suits.

       Maharashtra Rent Control Act, 1999 - Section 58(2) - Suit for eviction. - Suit for eviction filed under repealed Rent Act should be continued or disposed of in accordance with repealed Act. - ’J’ invited my attention to sub-section (2) of Section 58 of the Maharashtra Rent Control Act, which provides that notwithstanding the repeal of the Bombay Rent Act and other two similar Acts, all applications, suits and other proceedings pending on the date of the commencement of the Maharashtra Rent Control Act before any Court, Controller or Competent Authority shall be continued and disposed of in accordance with the Bombay Rent Act (other two repealed Acts) as if the repealed Act had continued in force and Maharashtra Rent Act had not been passed. Sub-section (2) of Section 58, submits ’J’ confers a privilege on the landlord to continue the suit filed under the Bombay Rent Act and once the landlord exercises the said privilege then the suit filed by him shall be continued as if the Bombay Rent Act had been in force and the Maharashtra Rent Act was not been passed. He further submits that sub-section (2) of Section 58 of the Maharashtra Rent Act creates two fictions one by which provisions of the Bombay Rent Control Act would be deemed not to have been passed. These two fictions arise, submits the counsel, when the landlord exercises the privilege of continuing the suit filed by him, under the Bombay Rent Act. He submits, in the present case the landlord has exercised the privilege by continuation of the first suit filed by him under the provisions of the Bombay Rent Act and therefore, by a fiction of law the Bombay Rent Act would be deemed to be in force and the Maharashtra Rent Act would be deemed not to have come into force after the Maharashtra Rent Act not to come in force, and hence sub-section (1) (b) of Section 3 of the Maharashtra Rent Act would not be applicable. Therefore, submits the counsel, the second suit would not be maintainable under the Maharashtra Rent Act. The fiction created by sub-section (2) of Section 58 is not of unlimited application. Sub-section (2) merely states that the suit or proceedings filed under the repealed Act shall be continued or disposed of in accordance with the provisions of the repealed Act as if that Act had continued to be in force and the Maharashtra Rent Act had not been passed. The fiction is created only for the purpose of and is applicable to the pending proceedings. The fiction does not apply to other proceedings, if any, that may be filed by the landlord on repeal of the Bombay Rent Act, or other two Acts.